IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Hill v. Davis, 2006 NSSC 199
Date: 20060630
Docket: SFHF-010197
Registry: Halifax
Between:
Gilbert Roland Hill
Applicant
v.
Pamela Irene Davis
Respondent
Judge: The Honourable Justice Moira C. Legere Sers
Heard: April 25, 26 & 28, 2006, in Halifax, Nova Scotia
Final Written Respondent - May 15, 2006
Submissions: Applicant - May 23, 2006
Counsel: Deborah I. Conrad, for the Applicant
Susanne Litke, for the Respondent
By the Court:
[1] This application was made pursuant to s. 37 of the Maintenance and Custody Act. The father seeks to terminate child support payable for his son, J.D., born June 2, 1982. He seeks to prove that he is not in default of the order relating to payment of arrears and s. 7 expenses. He seeks forgiveness of arrears due to the change in his employment income, hours of work, and health.
[2] The basis for the application is as follows:
1) His income has dropped from $100,000 to approximately $80,000;
2) He received no information regarding the career or educational choices presented to the Court in November, 2003;
3) He received no invoices requesting payment regarding third party costs, tuition, costs of books, etc.;
4) His son’s circumstances have improved such that he can withdraw from parental charge and can assist in his own support.
He submits that at November, 2003 his son was hobbling, slurring his words and suffered memory loss. Now his son can walk unassisted, run, drive a vehicle and was observed drinking on one occasion in a local bar.
He believes that his son should contribute to his education. He was unaware of his son’s course of studies. He believes it is time to consider termination of child support.
He is under doctor’s care, is stretched to the limit emotionally and financially, is obliged to pay support for his dependant son as well as contribute to his family. He suffers from anxiety, depression and is on medication. He has been diagnosed with diabetes.
[3] The father’s application was dated October 18, 2005. The mother filed a reply to the father’s application on March 10, 2006. She admits she did not provide any information until the commencement of these proceedings nor any receipts. She seeks enforcement of all arrears since the date of the order and ongoing indefinite child support.
[4] Evidence was led on a number of issues including :
J.D.’s current ability to withdraw from parental charge;
J.D.’s disability then and now;
Continuing entitlement based on his educational plans;
Repudiation of the father-son relationship; and
Disputing the arrears.
The Constitutional Issue - s. 2(c) Maintenance and Custody Act:
[5] Notice of the reply to this application was sent to the Attorney General for the Province of Nova Scotia. The Respondent sought to challenge the constitutional validity of Section to 2(c) Maintenance and Custody Act which terminates the right to maintenance beyond the age of 24 for children who are pursuing post secondary education. The Charter challenge has been deferred by consent of counsel pending this decision.
[6] Cromwell, J.A in Morine v. Parker Equipment Inc. (2001), 193 N.S.R. (2d) 51 (CA) discussed the obligation set out in ss.10(2) of the Constitutional Questions Act to serve notice on the Attorney General where the constitutional validity or constitutional applicability of any law is brought into question before the court judges the law to be invalid or inapplicable or grants a remedy. He stressed that
“...the Attorney General have the opportunity to be heard prior to any adjudication of invalidity.” (para. 44).
[7] While notice was given herein; counsel agreed to defer the argument on the constitutional issue. The Attorney General has not had the opportunity to speak to this issue.
[8] Sopinka, J. in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 spoke to the purpose of s.109 of the Ontario Courts of Justice Act (then similar to ss. 10(2) of the Nova Scotia Constitutional Questions Act). He said:
“In our constitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it but to the people.”
[9] It is possible, on a Court’s own motion, to raise the Charter issue as did Williams, J.F.C. (as he then was) in P.A.D. v. L.G. (1988), 89 N.S.R. (2d)7 (FC).
[10] I have decided not to adjourn this decision to set a date for a hearing on the merits of the Charter motion. The case was concluded without this issue being addressed, by consent of counsel. To properly adjudicate the issue, would require the parties, their counsel and counsel for the Attorney General to prepare for and address the constitutional issue.
[11] These parties have been litigating child support since J.D. was 14 years old. The father is the sole litigant responsible to pay legal fees. The emotional and financial costs of prolonging this matter, if I were to require counsel to prepare for and appear on a Charter motion, could be devastating. The father is the only party required to pay counsel fees.
[12] The Court must also recognize the restriction in the Maintenance and Custody Act against consideration of social assistance benefits.
The Law:
[13] This is an application to vary an order made pursuant to s. 9 of the Maintenance and Custody Act, R.S., c. 160, s. 1, as amended.
9 Upon application, a court may make an order, including an interim order, requiring a parent or guardian to pay maintenance for a dependent child. 1997 (2nd Sess.)., c. 3, s. 4.
[14] Dependent child is defined in s. 2:
(c) “dependent child” means a child who is under the age of majority or, although over the age of majority, unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or provide himself with reasonable needs but does not include a child twenty-four years of age or older who is attending a post-secondary educational institution;
(k) “reasonable needs” means whatever is reasonably suitable for the maintenance of the person in question, having regard to the ability, means, needs and circumstances of that person and of any person obliged to contribute to such reasonable needs;
[15] S. 37 of the Act under which this application to vary is brought requires a consideration of s. 10.
10 (1) When determining the amount of maintenance to be paid for a dependent child, or a child of unmarried parents pursuant to Section 11, the court shall do so in accordance with the Guidelines.
(2) The court may make an order pursuant to subsection (1), including an interim order, for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as the court thinks fit and just.
(3) A court may award and amount that is different from the amount that would be determined in accordance with the Guidelines if the court is satisfied that
(a) . . . special provisions have otherwise been made for the benefit of the child; and
(b) the application of the Guidelines would result in an amount of child maintenance that is inequitable given those special provisions.
(6) For the purpose of subsection (5), in determining whether reasonable arrangements have been made for the maintenance of a child, the court shall have regard to the Guidelines, but the court shall not consider the arrangements to be unreasonable solely because the amount of maintenance agreed to is not the same as the amount that would otherwise have been determined in accordance with the Guidelines. 1997 (2nd Sess.), c. 3, s. 4; 2000, c. 29, s. 8.
Other aid not to be considered
30 An order may be made under this Act whether or not the single woman, spouse or common-law partner, dependent child or dependent parent is receiving aid from any government or from any city, town or municipality or from any public, local or private body, organization or institution, or is being cared for in any sanatorium, hospital, home or other charitable or public institution and such aid shall not be considered in making the order. R.S., c. 160, s. 30, revision corrected 1999; 2000, c. 29, s. 8.
Powers of court
37(1) The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order or an order respecting custody and access where there has been a change in circumstances since the making of the order or the last variation order.
(My emphasis)
[16] Section 2(b) of the Child Maintenance Guidelines incorporates the definition of child as stated in 2(c) of the Act and includes a child of unmarried parents.
Child Maintenance Guidelines:
Child the age of majority or over
3(2) Unless otherwise provided under these Guidelines, where a child to whom a child maintenance order relates is the age of majority or over, the amount of the child maintenance order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the maintenance of the child.
Special or extraordinary expenses
7(1)(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Subsidies, tax deductions, etc.
(3) In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
Variation of Child Maintenance Orders
Circumstances for variation
14 For the purposes of Section 37 of the Act, any one of the following constitutes a change in circumstance that gives rise to the making of a variation order in respect of a child maintenance order:
(a) in the case where the amount of child maintenance includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child maintenance order or any provision thereof;
(b) in the case where the amount of child maintenance does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of a parent or of any child who is entitled to maintenance;
(There is a discrepancy between the Maintenance and Custody Act which disallows a consideration of other support such as social assistance and the Guidelines which mandates a consideration of social assistance when setting s. 7 expenses for a dependant child. This case is something of an anomaly in that the court made a determination that the young person could not withdraw from the charge of his parents at a time when he qualified for disability assistance as a disabled adult.)
[17] There is a legislated limit contained in the Maintenance and Custody Act that excludes children over the age of 24 years, disabled or otherwise, who are attending post secondary education. J.D. will be 24 years old on June 2, 2006. He looks forward to completing his first degree in four to five years in 2009, at 26 or 27 years old.
[18] The imposition of an age limit is not, on the face of it, unreasonable. There are legitimate competing interests in regard to the imposition of mandatory child support for post secondary students.
[19] Mandating parental support of post secondary students is a value-based expenditure. It is for the legislature to determine whether it is beneficial to consider a case-by-case analysis based on criteria as described in Farden v. Farden [1993] B.C.J. No.1315 B.C.S.C. (June 8,1993), rather than mandatory age limits.
[20] Critically, it ought to require a consistent approach applied equally across the board, regardless of the marital status of the dependent’s parents.
[21] The Divorce Act contains no absolute limitation, although case law has developed criteria for assessing when a child is able to withdraw from the charge of their parents and is no longer a dependent for other reasons.
Section 2(1): the Divorce Act states:
2. (1) “age of majority”, in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;
[22] The word “child” means:
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge; or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; (My emphasis)
[23] The absence of a legislated cutoff date for child support for young persons seeking parental assistance with their post secondary studies results in defining “dependancy” within a range of ages and stages subject to the interpretation of the courts on the facts of each case.
[24] In the Divorce Act there is also no s. 30 restriction on considering social assistance payments.
[25] The age restriction in the Maintenance and Custody Act does not distinguish between children of married and unmarried persons who are attending post secondary education. The advantage children of married persons have, is that the payee spouse for the dependent “child” may opt to proceed pursuant to the Divorce Act to create a more flexible environment in which to assess child support.
[26] The Divorce Act read with the Guidelines mandates a consideration of all income resources in assessing s. 7 expenses, such as educational expenses. This offers the flexibility of creating a formula that addresses the needs of a dependent child outside the ordinary formula. It also creates more options for parents and children.
[27] Dependents of unmarried parents do not have the option to proceed under the Divorce Act and are constrained in a consideration of all available resources.
[28] With disabled young persons pursuing post secondary education, this is a significant financial constraint which may limit the pool from which they can draw and thereby limit their options. One cannot consider a combination of resource sources to bolster the disabled person. It creates an either/or situation. One has to choose between one or the other which places the burden of support arbitrarily on one source (government or parent).
[29] The strict application of the exclusion after 24 as found in 2(c), confines this decision to a determination of what arrears, if any, exist since the last order up to June 2, 2006 and whether a change in circumstances since November, 2003 has been proven.
[30] After June 2, 2006, when J.D. attains 24 years old, under this legislation, because he is attending post secondary education, there can be no determination on the merits of the young person’s status as a dependent, in accordance with the developing case law.
[31] If under the Divorce Act for a child of married parents, age would not be determinative, it would be a consideration.
Legal History:
[32] There is an extensive legal history.
April 18, 1997 Order
[33] The first contested hearing was commenced by the mother’s application on June 5, 1996. J.D. was 14 years old. The resulting order required the father to pay monthly maintenance of $500 commencing June 5, 1996 and retroactive child support from October 1, 1993 to May, 1996 at $300 monthly.
[34] The father was informed he was the father rather late in this child’s life. Paternity was confirmed by blood tests. In previous proceedings, the mother admitted in evidence she kept the true identity of the child's father from her parents.
[35] She obtained a consent court order in 1982 naming another person as father. Both child and putative father operated for many years believing they were biologically connected.
[36] The father, without any knowledge of this child's birth, had already established his life with a wife and two children and was working as a stevedore. Both the child and father were denied critical early opportunities to jointly experience a father-son, infant-child-parent relationship.
[37] The Court preferred the evidence of the father over the mother, in determining when the father was advised he was a father. The Court ordered three years retroactive maintenance. Using an income of $50,000, the Court ordered $500 monthly child support effective June 5,1996.
[38] The father paid $5,500 in 1998 as well as $500 a month until April, 2001. J.D. graduated in June, 2000. He was no longer in school. The father continued to pay because he had been informed J.D. was returning to upgrade his marks in September, 2000. J.D. quit this upgrading attempt by January, 2001.
[39] Due to his behaviour, he had to leave his mother’s home. He moved in with the father, under strict conditions that there would be no drugs, drinking or disorderly conduct. He was required to attend school.
April 26, 2001 Order
[40] By order dated April 26, 2001 the previous child support order was terminated. Day-to-day care was transferred to the father. The April child support of $500 was ordered to be returned to the father.
[41] J.D. quit school in April, 2001 without any credits. His father continued to have problems with J.D.’s drinking and illegal use of drugs. He continued to reside with his father until the end of June, 2000.
[42] There is evidence in the previous proceeding and this proceeding that the father and his partner, Ms. Lambert, believed their health and safety were threatened by J.D.. The father was advised to contact the RCMP. They did not do so to avoid getting J.D. in trouble. They believed they were advised by a psychiatrist who had seen J.D. on June 26, 2001 to remove J.D. from their household, due to the possibility of harm to Ms. Lambert and her child.
[43] On August 12, 2001 J.D. was found intoxicated, in a comatose state after falling four floors from a parking garage. He was in a coma for a few weeks. He was released from hospital on December 7, 2001 into the care of his mother. Intensive rehabilitation followed.
November 21, 2003 Decision - December 8, 2004 Order
[44] On his release from the rehabilitation centre, the mother applied under the Maintenance and Custody Act to reinstate child support. A contested hearing took place on November 13th and 14th and the oral decision given on November 21, 2003. The order was not taken out until December 8, 2004.
[45] The learned trial judge considered the fact that the father had no investments or accumulation of savings, that he was paying for a child of his marriage and contributing to the support of his partner and her child. Adding that, together with his projected obligation to assist J.D., the trial judge considered the father’s obligations to support three separate families were onerous.
[46] The learned trial judge also considered the past support J.D. received from social assistance and community donations when he reduced the arrears owing.
[47] The father’s income was assessed at $100,000 annually, the Applicant’s at $25,600, and reduced arrears to $10,000, in consideration of the Respondent’s other obligations and the child’s present needs. The court order included:
“2 In consideration of s.3(2)(b) of the Child Maintenance Guidelines, the Respondent’s other support obligations, and the present needs of J.D., arrears of support are hereby reduced and set in the amount of $10,000.00. This amount shall be payable as follows:
a. Upon being presented with an invoice, the Respondent shall pay to the requisite third party the cost of J.D.’s tuition for attendance at a recognized post-secondary educational institution, the cost of books, and fees associated with J.D.’s education as well as any special equipment purchased by reason of the disability of J.D. that is necessary to further his education;
b. Any amounts up to the maximum of $10,000.00 not paid under clause 2(a) of this Order shall be due and payable to the person in charge of J.D. on June 2, 2006, or, if J.D. is not in a person’s charge, payable to J.D. directly on June 2, 2006;
c. Any tuition deduction available for transfer to the Respondent for the purposes of income taxes due to Canada Revenue Agency shall be made available to the Respondent by J.D. or by the Applicant; and
d. J.D. shall provide the Respondent with proof of his attendance at a post-secondary institution, proof of his grades; and immediate notice of his withdrawal from a post-secondary institution.
3 Commencing December 1, 2003, the parties shall share in proportion to their incomes the after-tax cost of special or extraordinary health-related expenses pursuant to s. 7 of the Child Maintenance Guidelines. The proportion of these costs for the Respondent is 80% and for the Applicant, 20%. These costs include at the date of this decision medical insurance premiums ($24.35 per month); special food ($66.00 per month); exercise and strengthening program ($23.62 per month) and transportation to medical/rehabilitation appointments ($57.00 per month) for a total of $170.97 per month. The costs of post-secondary education for J.D., if paid for pursuant to paragraph 2 of this Order, shall not be considered an expense payable under paragraph 3 of this Order unless all amounts payable under paragraph 2 have been exhausted.
4 The Applicant shall provide proof to the Respondent, by way of providing receipts, of any expenses for which contribution or payment is claimed under this Order.”
May 19, 2005 Appeal Court Decision
[48] On June 30,2005 the Respondent appealed the decision of the Honourable Justice Gordon Tidman. No stay existed against the decision of November, 2003 or order of December 7, 2004, in the interim. His appeal was dismissed with costs by decision dated May 19,2005. The Court of Appeal noted the following:
“[4] In June 2000 J.D. completed grade 12 at Millwood High School. In January 2001, after working in temporary positions for 6 months, J.D. re-enrolled in Grade 12 in order to improve his marks for university entrance.
[6] J.D. abandoned his upgrading attempt and sought employment. He was abusing drugs and alcohol which behaviour was of concern to both parents. On June 2nd, 2001 J.D. turned 19 years old. He returned to live with his mother in late June when his father told him to move out. Tragically, on August 12, 2001, J.D. sustained a severe brain injury when, intoxicated, he fell from the 4th storey of a parking garage onto the concrete floor below. He was admitted to hospital, where he stayed until October 9th, 2001. He was subsequently transferred to the Nova Scotia Rehabilitation Centre. Extensive rehabilitation was required for him to re-learn to speak and walk. He has made great strides but has not and will not regain his pre-accident physical and intellectual capacity.
[7] Following his discharge from the Nova Scotia Rehabilitation Centre in December 2001, J.D. returned to live with his mother. . . . Upon discharge from the Centre, he continued to suffer from his injuries, required close supervision and was unable to work or further his education. . . . Since December 20, 2001, J.D. had been in receipt of income assistance.
[9] In September, 2002, J.D. enrolled in an educational program at the City Church Bible Institute (CCBI). During that academic year he attended classes on Wednesday evenings. He completed several courses with excellent grades.
[10] In February 2003, on the recommendation of his rehabilitation physician, J.D. began consultations with Brian Tapper, a vocational counsellor. . . . From September 2003 to the time of the maintenance hearing in November, J.D. attended the Flexible Education Learning Centre (FLEC) of the Halifax Regional School Board, to upgrade his high school marks. (He successfully completed Biology, English, Global Geography and Global History. He achieved higher marks here than he did in school pre injury.)
[11] At the time of the hearing, although he continued to suffer the effects of the brain injury, J.D. was involved in a regular exercise routine, was abstaining from alcohol and drugs and was highly motivated to pursue an education. It was J.D.'s hope to take a paralegal course at the Nova Scotia Community College, commencing in September, 2004. Mr. Tapper thought that was an attainable goal, although J.D. was yet to be admitted to the program.”
[49] The Court of Appeal noted:
“[18] As the case was presented to Justice Tidman, the focus was J.D.'s status immediately preceding the accident. It was Mr. Hill's position that, at the time of the accident in August 2001, J.D. having attained the age of majority and not continuing with his studies or having firm plans to do so, was no longer a “dependent child” under the Act. (My emphasis)
[50] The Court of Appeal concluded that, upon graduation from school , J.D. made inquiries of other requirements for entering into Saint Mary's and Mount Saint Vincent Universities. He learned he needed better marks for acceptance. He returned to high school in January, 2001. Although he had abandoned that upgrading attempt in the months leading up to the accident, he had interviewed for and was accepted into an e-commerce program at CompuCollege commencing in September, 2001. He was working at two part time jobs and saving a little money for his education, as well as contributing to his mother's household expenses. The Court noted he had not committed to attend CompuCollege or any university, nor did he have the finances to do so at that time.
[51] Based on the Judge's finding that it was J.D.'s intention to further his education at a post secondary educational institution, specifically the paralegal course at Community college, the Court of Appeal indicated as follows:
“[22] Section 2(c) of the Act provides that a child may remain a dependent child even where over the age of majority, if “. . . unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or provide himself with reasonable needs . . . .” The case law is replete with examples where children remain dependents for maintenance purposes, even though not actually attending an educational institution. The issue of how long a child's period of dependency continues is one of fact (Martell v. Height (1994), 130 N.S.R. (2d) 318 (C.A.) per Freeman, J.A. at ¶ 8.; MacLennan v. MacLennan [2003] N.S.J. No. 15 (N.S.C.A.) (Q.L.) per Cromwell, J.A. at ¶ 40).” (My emphasis)
[52] The Court of Appeal cautioned that this was not to suggest the obligation was indefinite.
“[27] This is not to suggest that a parent has an indefinite responsibility to support a child who is capable of becoming independent. A parent does, however, have an obligation to assist a child through a reasonable transition period (Gamache v. Gamache [1999] A.J. No. 474 (Q.B.) (Q.L.) per Trussler, J. at ¶ 8 and 9).” (My emphasis)
[53] Significantly, the Nova Scotia Court of Appeal noted that J.D.’s dependancy was not premised on J.D.’s continuing dependancy, as a result of his pursuit of post secondary studies. J.D.’s future ability to withdraw from parental charge is unknown. They determined the focus was on J.D.’s status pre-hearing and pre-accident. The Court found that J.D. did exhibit a clear intent to pursue a course of post secondary study.
[54] Referring back, Tidman, J. said:
“The narrow issue here is whether J.D., upon attaining the age of majority, had withdrawn from his parents’ charge. J.D. at that time , was neither ill nor disabled. However, other cause, as both counsel agree, has been attributed by courts including this court to encompass as a dependent child, a child over 19 years who is actively engaged in furthering his or her education.”
[55] Having decided the case on this issue, the learned trial judge did not discuss the issue of repudiation of the parent-child relationship. He reviewed the reasonableness of the plan as introduced, and accepted the evidence of the experts, cautious as it was, that J.D. could attempt the paralegal course.
[56] He did consider the request of counsel to require reporting by J.D. and his mother and to advise in advance of tuition and special expense costs, in order that the father might plan financially for the payment of lump sum tuition costs, having regard to his other obligations.
[57] He also assumed that the father would have to pay J.D.’s tuition until age 24.
Current Application
[58] The mother admits that she did not provide the Applicant information regarding J.D.’s educational activities after the November, 2003 decision, nor did she provide receipts for payment regarding any expenses.
[59] The father’s application to terminate his obligations and deal with the arrears commenced in October 2005. Sometime late in December, 2005 or January, 2006 Maintenance Enforcement began to enforce the order.
[60] No previous attempts were made by Ms. Davis to enforce the order. Ms. Davis testified that J.D. had his needs looked after with social assistance, student loans and the access grants at the time. She knew of the appeal and did not actively pursue enforcement. The parties got on with their lives.
[61] In late 2005, Mr. Hill made formal enquiries as to J.D.’s activities and status. Her counsel advised, by letter dated December 23, 2004, that J.D. was enrolled at Saint Mary’s in certain named courses and that he had attended the FLEC education program previously. They were advised he completed three courses. Her counsel advised that they would follow-up with a printout of his marks and provide documentation proving the same. Counsel promised to verify the information.
[62] Mr. Hill’s counsel once again asked for confirmation and receipts, in her letter of March 29, 2005. The fact that no verification nor receipts were provided is not disputed.
[63] Most verification of actual dollar amounts concerning enrollment costs, associated fees, proof of enrolment, et cetera, were provided with the filing of affidavits (particularly February, 2006), in preparation for this hearing, some as a result of a Consent Order to Disclose.
[64] Clarification of the time of receipt of other sources of income including access grants was confirmed and clarified through oral testimony in May, 2006.
Chronology of Events:
[65] It is helpful to understand the chronology.
1) J.D. graduated from high school on June 27, 2000. Between September, 2000 and April, 2001, he made two attempts to upgrade by enrollment in school. Up to April, his father continued to pay support. He finished neither attempt. He earned no credits towards further studies. Due to his behaviour, J.D. and his mother came to a temporary parting of the ways. Mr. Hill, and Ms. Lambert took J.D. into their home, under strict behavioural conditions. They maintained their commitment to him attending school, supporting him through very difficult behaviour. When they believed their safety and the safety of the child living with them was seriously compromised, J.D. was told to leave; but not before attempting to engage him in professional help.
2) Still in a downward behaviour slide; J.D. filled out an application for CompuCollege.
3) J.D., then 19 years of age, suffered serious brain injury in the accident on August 12, 2001.
4) He remained in hospital from August 12, 2001 to December, 2001 when he went to live with his mother. At the time, he was unable to attend an educational institution or work. He was approved for social assistance. With the aid of hospital social workers, extras were added into his budget to cover special needs. He received $654 per month (now $669) and $167 for special needs. His special needs were identified to include a high protein high calorie diet which, at the time, was texture modified and costly. He required foot orthotics, and they asked the Department of Community Services to provide additional assistance to the family that allowed for these and transportation costs, to avoid having him attend his various appointments by bus, as that, they believed, would unnecessarily tire him.
5) His mother applied to reinstate child support in December, 2001. The order was given in November 21, 2003 taken out and issued December 8, 2004 and affirmed on appeal May 19,2005. The imposition of the court order temporarily interfered with the social assistance payments.
6) The Court heard evidence that, while he was not in school between June 27, 2000 and August, 12, 2001, the young person intended to go back to school and had filled out an application form for CompuCollege (This program has not been subsequently pursued).
(7) From December 18, 2001, J.D., by now a young man, lived with his mother. She worked and earned an income. He received social assistance and was supported by the loving care of the maternal grandparents.
(8) In September, 2002 he enrolled in an educational program in the City Church Bible Institute (CCBI). During that academic year he attended two classes on Wednesday evenings, successfully completing several courses.
(9) From September, 2003 to March, 2004, he attended the Flexible Learning Educational Centre of the Halifax Regional School Board (FLEC) to upgrade his marks. During the summer he worked on his rehabilitation and prepared to attend university.
(10) From December, 2001 to January ,2003, no referral for vocational assessment took place.
The services of the vocational counsellor commenced in February, 2003 to help J.D. explore vocational options. For some of this period, J.D. was reintegrating himself with help from his parents and grandparents. The referral to the Employability Assistance Program for persons with Disabilities (EAPD) was put on hold until the completion of the mother’s application to the courts for a reinstatement of child support for J.D.. He would not be eligible until litigation regarding insurance, Worker’s Compensation Board, et cetera is complete, until the possibility for recovery of resources from others, and in this case that meant Mr. Hill, was complete. This put J.D. behind in the queue.
(11) In September 2004, J.D. commenced an undergraduate degree in Business Administration at Saint Mary’s University.
(12) Being on social assistance, Mr. Tapper advised J.D. could have gone to post secondary education such as community college. To go to university, to remain on assistance, he has to be EAPD eligible. Being in the EAPD program opens doors not normally available to an individual.
(13) At that point, J.D. was not planning to go to university. The plan thoroughly researched, having regard to his disability and his present and future needs, presented to and relied upon by the Court was focussed on the paralegal course at community college. He had applied to community college. He was accepted in this program on April 27, 2004.
(14) In theory, there was supposed to be money to assist J.D. to complete his education. Because the EAPD program was stressed, Mr. Tapper waited to put J.D. on the list for assistance from the program until they completed the litigation on child support. The program being underfunded, the financial resources in the program being limited, each level of government wanting to be the funder of last resort, according to the vocational counsellor, if there was a chance that funding could be available from another source, that should be explored first.
(15) The application to reinstate child support resulted in the November, 2003 oral decision.
(16) The responsibility of the child or the mother was to provide attendance records, proof of grades, and immediate notice of any withdrawal from school.
(17) The s. 7 expenses were divided them 80/20 percent. They were tabulated as follows:
Medical Insurance $ 24.35
Special Food 66.00
Exercise strengthening 23.62
Transportation to medical facility 57.00
TOTAL $ 170.97
The father was to be provided proof of receipts regularly.
(18) The appeal of this decision was dismissed by decision dated May 19, 2005, with costs payable by Mr. Hill to Ms. Davis in the amount of $2,000 together with disbursements.
(19) Until preparation for the current hearing, no receipts were provided to the Applicant and he was not informed of his son’s educational plans with verification of enrollment, et cetera.
Changes in circumstance:
The young person then and now:
[66] Two experts testified and their reports were submitted by counsel. Dr. Richard E. D. Braha, Neuropsychologist and Adjunct Assistant Professor prepared the first report. He saw J.D. on February 22, 2006 for a follow-up report.
[67] Mr. Tapper, a registered social worker with his Master’s in Education, is the vocational counsellor who worked extensively with J.D..
[68] Dr. Braha worked with J.D. in the fall of 2001 through to his discharge in December, 2001. He continued to supervise certain aspects of J.D.’s interaction with his team to August, 2003, although less extensively. His clinical assessment was not aimed at quantifying the exact magnitude of deterioration. In 2002, he described J.D as follows:
“. . . he appeared alert and did not appear to have difficulty understanding questions or instructions put to him. His speech was lucid, fluent and articulate. He displayed appropriate behaviour throughout several lengthy sessions. . . . displayed positive social behavior. . . . his responses were consistent with retrograde memory loss, extending back at least two months. . . . He added though that his memory still was “not really good”.”
[69] The report addressed many aspects of his recovery except his emotional functioning. The summary noted he was in the early stages, and definitive statements about his long term consequences should await comprehensive reassessment at a later stage in his recovery.
[70] At discharge in December, 2001, J.D. experienced reductions in smell, in balance, in physical function, in attention, in memory, and self-awareness. He was dis-inhibited. He could not be left on his own.
[71] Concerning J.D.’s memory loss (specifically retrograde memories), Dr. Braha said:
“...often there isn’t a full recovery. There’s a patchy recollection in a kind of gradient for the period before the trauma. . . . If that retrograde memory loss hasn’t returned after . . . 18 or 24 months, it’s not, in my experience, likely to every return.”
[72] J.D. declined an offer to participate further in neurophysiological rehabilitation at the time of the report.
[73] Dr. Braha believed J.D. had reached a plateau. While future recovery was possible, it is not likely to be of a great magnitude. He stated:
“ One of the consequences of traumatic brain injury often is some reduction in self-awareness, insight . . . they often will experience reductions in global self awareness, not fully grasping . . . the nature of the changes they’ve experienced, not fully understanding what those changes are going to mean to them in terms of day-to-day life as they try to integrate...”
[74] J.D. participated in extensive period of treatment aimed at developing and improving strategies to accommodate for a number of factors; impairment in speed of information processing, attention, vulnerability to interference, to distraction from either internal or external events, his working memory and his dis-inhibitions.
[75] While Dr. Braha acknowledged he recovered a bit; at the end of the treatment very little change in the speed of processing, attentional filtering, and working memory took place. The changes he expected to see were not changes to brain functioning, rather changes to acquired skills and accommodations and adaptations. He continued to have expressive language programs and other reductions in other aspects of executive control functions. While the treatment plan reduced his stress, there was no meaningful difference in the speed of processing information and attention issues. The less he has to retain in his mind, the higher the likelihood of success.
[76] He suggested it would be a bit more difficult for J.D. now than before to filter his initial reaction to events. He suggested he could be a bit impulsive.
[77] Dr. Braha and Mr. Tapper commended J.D. on his phenomenal motivation and his compliance with the treatment program. He is keen and highly motivated to succeed. He tires easily.
Behavior
[78] The hospital release notes indicate that J.D’s behaviour in the centre was not always appropriate. Before discharge, they addressed their concern about his behaviour toward a patient in his room to ensure an incident did not happen. They referred him to a psychologist because “J. might fly off the handle and yell and curse when frustrated or irritated.” In December, 2003, Dr. Braha noted:
“Results suggest relatively . . . or recovered ability in most areas of neuropsychological function at least to within or above low average levels of performance for his age. He displayed . . . reported reduction in self-control/emotional control--although longstanding this has no doubt been exacerbated by his injuries. Reduced response inhibition, combined with reduced planning and foresight may result in occasional behavioural outbursts, uncensored speech etc.”
[79] The psychologist met with J.D. and his mother to suggest behavioural management strategies for self-control. Dr. Braha agreed to follow him through outpatient to target these areas of reduced ability in therapy, as it was his belief that this behaviour would impede his reintegration as much or more than restrictions in his mental ability per se.
[80] J.D. was referred to behaviour therapy because of difficulties in interpersonal functioning related to increased irritability, reduced frustration tolerance. The doctor noted: “I am not sure he fully gasps or perceives how other folks respond to him in an interpersonal context.” Within the confines of his practice, the doctor did not see him as aggressive. He noted he could appear aggressive to others due to his responses.
[81] Donald Allen testified that he was approached by J.D. in February, 2006 at a local restaurant. J.D. had been aware of the fact that his father had hired a private investigator to determine the current state of his disability. J.D. erroneously thought Mr. Allen was a private investigator.
[82] Mr. Allen had to convince J.D. that he was not a private investigator. Mr. Allen found him intimidating. This behaviour is described by Dr. Braha in the earlier reports and by his mother in court. It has been addressed through behavioural management. It will be a consideration in obtaining or maintaining a job if it is not amenable to change.
[83] Dr. Braha considered post secondary education with certain accommodations a viable option. Those have been put in place. He noted that multi-tasking would be difficult, ie., taking notes and listening. He needed help with social skills because he remained dis-inhibited. Diet, hydration, rest, fitness and a structured life are critical to his health and optimal performance.
[84] He concluded that in many ways J.D. was doing well, functioning within or above average with some areas of reduced ability. In the impaired range of ability, he noted that he could not predict the extent to which J.D. would be successful. While indicating there were a number of jobs he could do, he also asked the question “Whether there are employers who would support a survivor like J.D, is the question.” and he wondered how long J.D. could maintain a certain behaviour?” At the time, they were focussing on his desire to complete paralegal training. The deficits he has to work with are a reduction in a higher level aspects of attention, multitasking and distractibility. His energy level is one of the questions to be concerned about when looking at sustainability. The doctor looked at the job of a cashier. It required multitasking, ability to deal with interruptions, rapid processing; so he would not be ideally suited for that kind of position. His balance is something that may affect his ability to get certain jobs.
[85] On discharge from rehabilitation, hospital staff assisted J.D. in applying for social assistance. The application notes the client is applying for assistance because of his traumatic brain injury. The statement completed by the doctor indicated that with treatment he will be employable after one year or longer. At the time of release, he still required 24-hour supervision.
[86] Dr. Braha thought it would be a realistic option that J.D. could be employed in the 6 to 12 months following November, 2003 (November, 2004).
[87] The doctor thought J.D. has a realistic chance of performing well at the community college level.
[88] Mr. Tapper discussed with the community college what accommodation could be made for J.D.. The administrator for the paralegal course expressed some concern about J.D.’s ability to complete this course. With a reduced load they might have to extend the completion date from two years to four.
[89] The learned trial justice restated this as follows:
“COURT: And it’s your view that, for instance, this two-year course at the community college, that it’s realistic that it may take him four years to do that because he’s not able to do it in a two-year period, but that he would be able to do it . . . You’re not saying what level he would function.”
[90] The evidence was clear that the extension required might be an additional two years.
[91] The vocational adviser noted they did not do an assessment on what jobs J.D. could do if he did not go to school. They followed his wish to go to school.
There was no evidence he was at the time equipped for minimum wage employment. He had lasting balance problems, was prone to distraction, and tended to be impulsive. He would need a highly structured work environment and substantial accommodation from an employer.
According to Mr. Tapper, J.D. could attend community college and receive social assistance. He was not put on an eligibility list for Employment Assistance for Persons with Disability. His vocational counsellor decided to wait to see what money would be available from his father from December, 2001 to December, 2003. J.D. knew of this option to be placed on this list before June 6, 2003.
[92] At the hearing, the Respondent presented J.D.’s plan to go to community college program for a two-year paralegal course. Assessing his career options was an intensive process, assessing his abilities and interests with the material available on the occupational options to find the best marriage of career option with his skills, abilities and disabilities. Once he committed to community college, he went to speak with them to augment his experience. Then he approached upgrading for completion of four courses.
[93] At the November, 2003 hearing, the counsellor was asked whether, after completion of the paralegal course, J.D. could realistically expect to find a job in a law firm, legal department, community and legal services in a law firm, legal department, financial institutions, insurance agencies, and private industry as a legal assistant, paralegal or law clerk. He said:
“...people with brain injuries are challenged in entering the work force. . . . Could he go into this job and do it without supports? Probably not. Would we need a supportive employer? Absolutely. Are there resources there to make it happen? Yes, to the extent that if we could find a law firm or a bank or anyone who says, “My God he’s got good marks. We’d like to give him” . . . there’s money out there where we could subsidize a person’s wage while they proved their ability to either do or not do the job . . . yes , I think given supports and a very understanding employer, we could have a successful outcome, but without that, I’m not optimistic.”
[94] The counsellor admitted to serious questions about the choice of a paralegal course, but acknowledged that it was what J.D. wanted to do. He will need a lot of support and a very understanding employer.
[95] The counsellor confirmed J.D. needs a structured environment. He admits that they have not had a track record at finding employers. Critically, he noted:
“. . . If you were to ask me today what I would do to support J.D., then the best thing I could do would be to connect J.D. to someone in the community who’s a job developer, who is on a day-to-day basis working with business to identify their needs, and then can try and connect J.D..”
[96] As of the December hearing date, J.D. had the application form. The course was scheduled to start in September, 2004 with applications due March 1, 2004. He was ultimately accepted on April 27, 2004.
[97] At the same time, J.D. applied and was accepted at Saint Mary’s University. This was not known at the time of the hearing.
[98] The Court reinstated child support in November, 2003. J.D. completed the FLEC courses in March, 2004 and received his acceptance in April, 2004 to attend Community College.
[99] In April-May, 2004, J.D. decided to pursue an entirely different course. He applied to Saint Mary’s University and was accepted in May, 2004 for a four-year degree program in Business Administration in University commencing September, 2004. He hopes to complete his degree in four to five years.
[100] Upon acceptance into university, J.D. was advised he was no longer eligible for assistance. Mr. Tapper intervened in November, 2004. Since J.D. was EAPD eligible, he was entitled to receive assistance while he pursued university courses. Mr. Tapper advocated for J.D. with the university to assist him in obtaining the resources he needed to go to this program. His intervention, for the most part, ceased once J.D. began his studies.
[101] Upon learning of his acceptance into Saint Mary’s, Mr. Tapper began to meet with the Atlantic Centre in Support of Disabled Students. He also assisted J.D. accessing funding. J.D. initially applied for a student loan and the Canada Studies Grant. The student loan office, after Mr. Tapper’s intervention, issued a cheque for $4,137 to cover tuition and books.
[102] Dr. Braha saw little of J.D. during the intervening years between his final assessment after discharge and his current update. In his follow-up report, Dr. Braha noted the following:
“. . . Mr. D. continues to experience the same constellation of effects as those reported previously.” (My emphasis)
[103] He saw no change in the state of his recovery six months after the accident and in February, 2006. He sees no likelihood of significant change, barring a further illness or injury. He sees little likelihood of full recovery. He foresees J.D. will continue to learn new ways of adapting and compensating.
[104] He acknowledged that he was able to attend Saint Mary’s University, but cautioned that this required careful planning to ensure diet and rest and fitness were an integral component to his success. He noted that J.D. displays strong aptitude for university level courses.
[105] Dr. Braha was asked whether J.D. should undertake part time work. He responded that working part time during the school year for any student created a burden that potentially impairs their success. For J.D., the risk would be greater.
[106] Mr. Tapper noted on January 20, 2006, that his contact with J.D. was limited since he enrolled in university. Much of what Mr. Tapper said in his second report is information he gleaned from J.D. when meeting him to issue a follow-up report.
[107] Mr. Tapper supported the pursuit of this university degree. He noted that completion of this degree will give him marketable skills.
“J.D.’s success in the workplace will be based on his ability to obtain employment with a business that is able to make accommodations in the workplace leading to the successful completion of the assigned tasks. I believe that it is quite possible that throughout J.D.’s working career, he will require supports from time to time to assist in the mastering of tasks and the retention of employment. I do believe that J.D.’s work habits are a strong asset . . .”
[108] Mr. Tapper noted that J.D. did not fully access all of the services available through the university centre that would enhance his performance. Mr. Tapper was of the belief that J.D. utilized a note taker service for 50 percent and could enhance his performance by utilizing the services of the centre even more. J.D. has also accessed tutoring aid.
[109] Mr. Tapper believes that, given J.D.’s difficulty with high school; his brain injury; his scores (he has 8 C’s, 2 B’s, 1 D and 1 F); he has demonstrated the ability to do the work to organize himself and, with appropriate accommodations, meet the demands of university studies. Based on his current progress, he believes he could complete the degree in four and one half to five years.
[110] Mr. Tapper informed J.D. in June, 2006 about the Access Grants which could reduce his loan by $4,000. He assisted him accessing these PAG and CAG for the last academic year. This is significant financial support received by J.D.; normally granted to pay down student loans (a total of $4,000). Mr. Tapper advised there was no money in the program until April, 2004. There is money for tuition and adaptive technologies. The program does not cover travel.
The young person’s current state of health:
[111] J.D. walks unassisted, although has an unsteady gait at times. He is able to run. He is able to live unsupervised, drives a car, attends university in a modified course load and work week. He is able to carry a shoulder bag and gesture with his arms and bend over at the waist.
[112] He has been designated as permanently disabled. He is considered in full time attendance at Saint Mary’s University, while carrying 40 percent of a course load. The reduced course load accommodates reductions in information-processing resulting from the brain injury. He attends his courses two days a week (on Tuesdays and Thursdays), and works on the remaining three days of the weekday on study, attending appointments, going to the gym, socializing and maintaining his health. He does not work part time.
[113] He completes three full credits per school year, September to April, one additional half credit in the spring, and one half credit in the fall, allowing him to complete four full credits per year. He commenced university on September 7, 2004. During the 2005 year, he obtained a B- and two C-.
[114] Between September, 2004 and April, 2006, J.D., if successful, will have completed seven and one half credits. He has repeated only one course.
[115] He has the use of a tutor and the assistance of a note taker in class, to assist him in successfully completing the courses. He writes his exams at the Atlantic Centre in support of students with disabilities. He is given time and one-half to complete his written exams. He generally goes out once on a weekend. His mother indicates he is dedicated and motivated to complete his studies.
[116] While previously maintaining sobriety and abstaining from drugs, he now drinks alcohol, he says, moderately. The allowable evidence discloses that on one occasion, he was observed between the hours of 11:32 p.m. and 1:58 a.m. at a local bar. Over the course of the night, he had four beer and one shot of hard liquor. J.D. advises this is not a usual occurrence. His mother confirms that.
[117] His mother and her parents purchased a home together to provide Ms. Davis and J.D. some global support. His grandparents prepare his meals to ensure he maintains the necessary nutrition and hydration, to maximize his potential.
[118] In speaking about “ the current status of his employability?”, Mr. Tapper concluded :
“Based on J.D.’s high school education and challenges imposed by his brain injury and without further education, J.D. may have the ability to perform routine, structured, minimum wage occupations. This would be contingent on his ability to have a supportive and understanding employer to assist in the mastery of job-related skills.”
[119] Initially, Mr. Tapper attempted to steer J.D. to a program in community college that had some practical application of learned skills of benefit to J.D.. The duration of the program concerned him. He reinforced his belief that J.D. look at community college. He recommended he access vocational supports through government programs that offer internships/funding for targeted wage subsidies.
[120] The November, 2003 Vocational Counselling Assessment Report gives a clue to the difficulty with courses of long duration. Mr. Tapper noted that paralegal courses were competitive and demanding and would have to be modified to accommodate his learning needs. They talked with the college administration and they considered modifying the course to four years. Mr. Tapper noted at that time his goal:
“It is important that educational supports be put in place to enable J.D. to achieve his goals. He will benefit from a structured learning environment in which he establishes a routine and where his work schedule can be regulated to limit fatigue and other factors that can impact on information processing.” (My emphasis)
[121] In his follow-up on February 6, 2006 with J.D., he noted that, due to the memory difficulties J.D. experiences, relying on his memory to organize his schedule may not be sufficient to organize his appointments.
[122] He asked J.D. to consider the utility of a co-op placement to introduce him into the business world. J.D. expressed to Mr. Tapper confidence in his own ability to get a job.
[123] Even with a degree, J.D. will have to work in a setting that is modified, that has few employees around him. Those with whom he works will have to be patient and understanding. He sometimes fails to maintain social boundaries required in a workplace. His mother notes that he continues to show improved ability to function in social situations. He is sometimes irritable and socially dis-inhibited.
Social Assistance
[124] J.D. qualified on December 29, 2001 for Provincial Social Assistance as a disabled adult. He has continued to receive benefits interrupted only when the November, 2003 order required his father to pay a base amount per month. In 2003 he was receiving $675 social assistance per month. He continues now to receive assistance in the amount of $669.13 monthly and $167.13 for special expenses, including transportation, medical and food.
[125] J.D.’s social assistance was stopped temporarily when the Court ordered Mr. Hill to pay $774 per month, in accordance with the guidelines and contribute 80 percent towards special expenses. As of June, 2003, he paid monthly child support for the child of his marriage of $737.
The Applicant’s circumstances:
[126] The Applicant is divorced and continues to live common-law with Alanna Lambert and her dependent daughter.
[127] In 1993, he earned $37,867; in 1994, $40,659; in 1995, $74,784; and in 1996, up to October 26, 1996, $41,927; in 1998 he earned $86,771; in 1999, $70,275; in 2000, $94,569 including some RRSP income; in 2002 he earned $91,353; in 2003, $101,033.
[128] His 2004 earnings were $91,910; 2005 were $79,104.86. He claims a significant reduction in income for 2006 to $30,230, due to stress, depression, his recent diagnosis of diabetes, and the reduction of available work opportunities.
[129] The details of his divorce are not before me. He was left the matrimonial home in the division together with matrimonial debt of $760 monthly ($37,000) and a spousal and child support obligation of $1,057. He continues to pay for his son by voluntary allotment in the amount of $737 monthly; likely to be reduced to $630.
[130] I am unable to calculate the equity in his matrimonial home after his equalization payment, his debt obligations now, as a result of a refinancing ($275 monthly) arising from his divorce.
[131] The Applicant and his common-law partner separated for two months after the stress of living with J.D.’s behaviour and the resulting litigation and decision of the Court. They reconciled and continue to live together.
[132] In July, 2005, the Applicant signed over his interest in his current home, 36 Baird Stone, to his partner.
[133] The Respondent’s counsel argued this was an attempt to divest himself from any assets that could be attached as security for maintenance. The partner said she wanted to protect her investment, due to the troubles and litigation the Applicant constantly faced.
[134] The land on which this home was built was purchased in December, 2000. Ms. Lambert offered proof that she received a settlement of $15,000; $65,316 from other properties she owned; and $50,000, a gift from her aunt.
[135] She made a number of lump sum payments against the mortgage on this home including a principal payment of $23,250 on July 14, 2004, $7,500 on August 3, 2004, and $10,000 on September 25, 2005, together with an interest payment penalty of $2,381.06. She has also paid toward the construction of the garage.
[136] She insisted on having the home in her name, due to the significant contribution she made to the purchase of the land and the building of the home. She was concerned about the Respondent’s matrimonial debt and the growing fees associated with litigation.
[137] She took out a secured second mortgage on her home on May, 2003, solely to reduce the payments on his debt for which he agreed to be responsible. He paid until November, 2005 when his pay was garnished by Ms. Davis, making payment by Mr. Hill of the matrimonial debt now secured by the mortgage impossible.
[138] The evidence of Ms. Lambert was believable; her approach reasonable. She gave evidence of what contribution she made to J.D. before his accident. Her goodwill and efforts were exemplary and were ultimately rebuffed. She believed she and her child were at risk of injury, and she testified she had enough of this situation which was not of her doing.
[139] The events preceding J.D.’s injury and the court proceedings put her under doctor’s care. She has suffered depression, been medicated for the mental and emotional stress, and attended counselling to deal with the effects of this situation on her. These events have had a significant and life-altering impact on all.
[140] No doubt if separation occurred, she would have a strong argument for an unequal division of this home. That said, in the event it is necessary to recover arrears, his equity at the time of their meeting would have to be traced and his share of the equity in the home would have to be calculated. The current municipal assessment of this home is $224,600. It has a current market value assessment of $259,900 and mortgage in excess of $138,900.
[141] Ms. Lambert is self employed in the real estate business. Her financial information is filed.
[142] As a result of the father’s 2005 assessment, his payments for his son with his first wife will be reduced to $630 a month. As of December 4, 2005, Maintenance Enforcement garnished his pay in the amount of $774 plus $136.78 special expenses. He had a voluntary garnishment for his son of $737. Maintenance enforcement were looking to garnish for arrears as well.
The Respondent’s circumstances:
[143] The mother is currently employed at Convergys. Since the court order, she and her parents purchased a home in Lower Sackville for $134,000 in July, 2004. She and J.D. occupy the bottom floor. She purchased a 2004 Pontiac Sunfire in January of the same year. This has been a positive change in her circumstances and has provided more support for her son.
[144] In 2002, she earned $15,454; in 2003, her income was $26,834; in 2004, it was $33,865; and in 2005, it was $32,531. She works as many overtime hours as possible.
J.D.’s financial circumstances:
[145] J.D. has received Provincial Social Assistance since December, 2001. Initially, he received monthly assistance of $654.72. He now receives $669.13 per month plus $167.13 for special needs. He has experienced considerable progress in his day-to-day life and abilities to live independently.
[146] He has received financial aid from various sources. In 2004, he received a one-time grant of $1,553 from the Province under a Canada Study Grant for students with disabilities. This assisted him in purchasing a computer. His mother paid the balance of $154.70.
[147] His student loan, grants, and social assistance pay for education and needs. It was confirmed by letter dated April 10, 2006 that he will be receiving a Provincial Access Grant for students with permanent disabilities (PAG). The money is normally used to pay down his student loan. In this case, because there were unmet needs, the funds were paid to him directly.
[148] The total amount he receives for first and second semester will be $16,240 (inclusive of CAG, Canada Student Loan, Nova Scotia Student loan, and PAG).
The repayable portion is $12,240 and the non repayable portion is $4,000, relating to the Canada Access and the Provincial Access Grants. J.D. anticipates completing his degree in four to five years.
[149] J.D. manages his own money. He pays his mother $300 a month towards room and board. He has the balance to spend. His food and lodging are covered. He has access to a car but must contribute to gas. He estimates that is about $80 a month. He studies long hours, goes to the gym on average twice per week. He prefers to go to the Sports Stadium rather than Saint Mary’s gym. He has memberships in both. He maintains he goes to a bar less than once per month. He engages some tutoring.
[150] He still has difficulty with balance on occasion and speech when he is tired.
Special Expenses:
[151] Ms. Davis is claiming to recover the portion of the medical expenses and dental insurance premiums attributable to the child (ie., $24.02); health related items that exceed insurance reimbursement including orthodontic, professional counselling by a psychologist, social worker, psychiatrist, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses, and expenses for post secondary education.
[152] Before child support was ordered, social assistance paid $167.13 for special needs related to travel and transportation, medical care, special diet and telephone. Once Mr. Hill was garnished, they ceased doing so.
[153] She seeks to have the Applicant pay the Sports Stadium costs. He now goes to the Sports Stadium twice weekly. This costs $222 yearly.
[154] In light of all of the above, the change in J.D.’ status and ability to function, the change of plan, the change in financial circumstances of both parents, change of circumstances noted below, there is sufficient change justifying the application.
Dependance by reason of disability:
[155] The learned trial judge in November, 2003 seemed to base its decision on J.D.’s educational plans and the fact that he had not withdrawn from parental charge prior to the accident after he had attained the age of majority.
[156] The Court of Appeal confirmed that J.D.’s dependancy was not premised on his continuing studies, rather on his current state and inability to withdraw from parental charge.
[157] Is J.D. able now to withdraw from parental charge? Will his care simply be moved from parental care to government assisted care? If so, what are his reasonable needs?
[158] If the August 12, 2000 accident had not taken place and J.D. had continued in his downward spiral, it is probable that he was fast approaching the end of his dependency and entitlement to financial support. Considering his current state of permanent disability, what is J.D.’s entitlement?
[159] The ability to withdraw from the charge of a parent was dealt with in Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205, [2002] S.C.J. No. 8, 2002 SCC 9. This concerned the application of the parents who sought to recover damages in a medical malpractice action for the costs of the child’s adult care. The child was handicapped.
[160] The Court discussed the issue surrounding an adult child withdrawing from the charge of his parents, as well as the societal role in assuming the burden of supporting disabled adults.
[161] In Krangle, for stated reasons, a determination was made that it would be in the best interests of a 19 year old child with Down’s syndrome to have him live in a group home. He would qualify for benefits under the BC Benefits (Income Assistance) Act of $654 per month which would meet his group-living home expenses. Under that social safety net, he would be able to support himself.
[162] In the British Columbia Court of Appeal, the Court found the parents would not be liable for the cost of adult care. The provincial government would absorb that cost and their son would no longer be under the charge of the parents.
McLachlin, C.J. is quoted as saying at paragraph 34:
“34 . . . when Mervyn leaves his parents’ home and goes to a group home, he will leave his parents’ “charge”.” (My emphasis)
The term “charge” is defined as including care, custody, responsible possession, being a person or thing committed to the care of another.
[163] McLachlin, C.J. spoke about the philosophy underlying the primacy of the state’s obligation versus the parents (paragraph 35):
“. . . In my opinion, the better view is that the amendments were not aimed at shifting the burden of caring for adult children from the state to parents, but rather with ensuring that in situations where one parent is charged with the care of an adult disabled child, the other parent is obliged to assist. This is supported by the wording of the definition of “child” in s. 87. If the intent was simply to shift the burden from the state to parents, it would have been clearer to state that parents with means are responsible for the care of adult disabled children. Instead, the definition includes the qualification that this is so only when the child has not left the “charge” of the parents. The effect generally is that where in fact a child cannot leave home and remains a charge or burden on his or her parents, both must contribute equally. On the other hand, where he is or she is able to leave the parents’ charge, the s. 88 obligation is inapplicable.”
[164] McLachlin, C.J. noted that no precedent was submitted to establish the moral duty to recompense another for expenditures which are not legally required, but which the other in conscience feels obliged to make.
[165] The Court did review the basis for this suggestion by referring to the policy as established in the Province of British Columbia to provide care for disabled adults.
“40 . . . This policy is expressly stated in the BC Benefits (Income Assistance) Act, which confirms in the preamble that “British Columbians are committed to preserving a social safety net that is responsive to changing social and economic circumstances”. When a disabled person becomes an adult, the burden of his or her care shifts from the parents to society as a whole, and it is accepted as fair and just that the continued burden of care of disabled adults should be spread over society generally. At one time, it may will have been the moral responsibility of parents to care for a disabled child for as long as they lived. But for some decades now, that moral responsibility has shifted to British Columbia society as a whole, as expressed by legislation enacted and preserved by successive governments.”
[166] In Hanson v. Hanson, [2003] S.J. No. 514, M-E. Wright J. of the Saskatchewan Court of Queen’s Bench on August 1, 2004, considered Krangle together with Riddell v. Blackburn, [2003] S.J. No. 53, 2003 SKQB 21, (2003), 230 Sask.R. 18 and Nolte v. Nolte, [2001] S.J. No. 362, 2001 SKQB 268, (2001), 208 Sask.R. 88. The Court concluded that a high functioning Down’s syndrome 24- year old adult was no longer a child of the marriage as she had attained a level of independence and was no longer under parental charge.
[167] Hanson, in part, can be distinguished on the facts. It is helpful because it discusses “withdrawing from the charge of parents” and the legal and moral obligation, if any, of parents to support disabled adults. Applying the same principles as Krangle, each came to a different conclusion on the facts.
[168] On the 6th day of January, 1986 (pre-guidelines) the Nova Scotia Court of Appeal in Nowe v. Nowe , 71 N.S.R. (2d) 272, reviewed the evolution of the duty to provide children with the reasonable necessaries of life. The obligation of a parent to support a child which arises out of s. 8 of the Maintenance And Custody Act was extended by the definition of a dependent child under s. 2(c) to include a child over the age of majority but unable to withdraw from his parent’s charge because of illness, disease or other cause.
[169] The Court noted that the legislature intended to associate the child’s inability to provide his own needs with his inability to withdraw from his parent’s charge. The Court decided it was too great a departure without explicit legislated intent to create a new legal duty to support children beyond the age of majority to include a situation where a parent becomes responsible for a child’s needs for his whole life, when he has withdrawn from their charge, even though he may be unable to provide for his own needs.
[170] The Nowe case may be factually distinguished from the case at Bar. A 30-year old applied for child support having already withdrawn at age 18 from parental charge and had little contact with the father. He developed multiple sclerosis and was unable to support himself.
[171] In Nowe, Hart, J.A. reviewed the historical evolution of the right to sue for support, arising out of the common law to current times in which child support is grounded in legislation. The age for entitlement was increased when this provision was incorporated into the Children of Unmarried Parents Act, c. 3, S.N.S. 1951, to 16 years.
[172] Jurisdiction was given to the Family Court in 1963 to deal with maintenance and children under the age of 16 years, and in 1968, with the Divorce Act, the federal statute recognized that the need for maintenance of children sometimes continued beyond the age of 16 years and was extended to over 16, if unable by reason of illness, disability or other cause, to withdraw themselves from the charge of their parents or to provide themselves with the necessaries of life.
[173] Hart, J.A. noted it became common practice to extend payment of maintenance to children of the marriage over 16 years of age as long as they were actively engaged in furthering their education. This was recognized along with illness and disability as a valid reason, that children could not withdraw themselves from the charge of the parents or provide themselves with the necessaries of life.
[174] In Nova Scotia, the age of 16 years was replaced by the age of majority, i.e. 19 years old.
[175] The Court of Appeal specifically rejected the notion that the legislators intended to broaden the category of children unable to provide for their own needs by including as a right children over the age of majority who are unable to withdraw by reason of illness, disability or other cause.
[176] The legislator specifically referred to a child over the age of 24 and the Court found:
“Special reference was made to prevent this category of child from continuing in this unique position after attaining the age of twenty-four years simply by virtue of the fact that he was still furthering his education. I am satisfied that the Legislature did intend to associate the child’s inability to provide for his own needs with his inability to withdraw from his parents’ charge and did not intend by virtue of this definition section to create a new substantive responsibility of parents giving them a legal duty to support their children beyond the age of majority.”
[177] The Court went on to indicate:
“The new Act would merely extend to the Family Court judge the same jurisdiction as vested in the Supreme Court under the Divorce Act, that is, to provide support for the child remaining in the charge of his parents and unable to withdraw or support himself by reason of illness, disability or other cause such as the completion of his education. . . . To interpret the meaning of a “dependent child” in such a manner as to render his parent responsible for his maintenance for his entire life or any part thereof during which he is unable to provide for his own needs is, in my opinion, too great a departure from the common law and the statutory obligation imposed by s. 8 of the Act to be justified by the wording of the definition section.” (My emphasis)
[178] Here, J.D. continues to live with his mother and grandparents. As a disabled adult, he is a candidate for in-home social assistance. He lives at home because it enhances his ability to maintain his educational course of action. It may be the best choice for him, the wisest choice to further his plans. I have no proof that it is now necessary. He may well be able to move into the community with government assistance in an assisted living situation.
[179] He made a decision not to seek additional help and his consent is still necessary to engage in that. He banks; he is successful in his reduced course load.
[180] On the face of the evidence, even though the deficits in distractibility and in impulsive behaviour are likely to remain, his behaviour depicts his ability to accommodate these deficits and make decisions about his life as an adult.
J.D.’s Educational Plans
[181] It is the person over the age of majority who asserts a right to support that bears the burden of proving entitlement. The principle that child support is not forever has been recognized in other courts, particularly when assessing the entitlement of students pursuing post secondary education. The principles are fairly consistent reflections across the board.
[182] Farden v. Farden, [1993] B.C.J. No. 1315, a decision of the British Columbia Supreme Court (June 8, 1993) rendered judgment as follows:
“Under the Divorce Act, 1985, there is no absolute duty nor is there any prima facie legal obligation upon a parent to support a child who is over the age of 16. Once a child reaches age 16 the onus is on the spouse seeking an order for support under s. 15 to satisfy the court that the child is unable to withdraw from the parent’s charge or to obtain the necessaries of life [see Law v. Law (1986), 2 R.F.L. (3d) 458 at 462 (Ont. S.C.)].”
[183] The Court went further to indicate that:
“There is, however, ample authority that the pursuit of education can be sufficient cause to render a child unable to withdraw from the parent’s charge or obtain the necessaries of life [see e.g. Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 (B.C.C.A.).] . . . If it is established that the child remains a “child of the marriage” by reason of that child’s attendance at a post-secondary institution then the spouse will have an obligation in proceedings brought under the Divorce Act, 1985 to support the child in the pursuit of that child’s further education.”
[184] The Court ought to consider whether the post secondary school plan is a reasonable extension of parental obligation. The Court quoted McNulty v. McNulty (1976), 25 R.F.L. 29 (B.C.S.C.) to conclude that “simple enrolment in a post secondary institution is not in and of itself sufficient cause for finding that the child is still a child of the marriage; that it is a factual conclusion based on an examination of all the circumstances.”
[185] In Farden v. Farden, Master Joyce listed eight factors for consideration:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance; ( my emphasis)
(3) the career plans of the child, ie., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom the support is sought.
[186] The B.C. Court of Appeal in Darlington v. Darlington (1997), 32 R.F.L. (4th) 406 at 410, adopted Master Joyce’s eight items. Courts must assess the efficacy of the educational pursuit. Not all of the listed factors need be present.
[187] These cases provide helpful guidance to apply to the facts of each case in making the determination whether the child is able to withdraw from the charge, whether the child is or continues to be in the charge of a parent due to disability or the reasonable pursuit of an educational plan.
[188] These factors balance the societal view as to desirable educational objectives on the one hand, with respect for the integrity of the parents and family and their values on the other. This approach requires a consideration of the needs of the student/dependent in the context of the family in which s/he evolved.
[189] In the chronology of events here, the time frame of J.D.’s educational pursuit takes on meaning:
June, 2000 18 years old
(no courses, no upgrading,
one application, minor income)
August, 2001 19 years, 2 months
(Injury)
December, 2001 19 years, 6 months
(Discharged from Rehab Centre)
December, 2001 19 years, 6 months
(Application for child support reinstatement)
September, 2002 20 years old
Academic year (Wednesday evening classes)
February, 2003 20 years old
(Referral to vocational counsellor)
September, 2003 - November, 2003 21 years old
(Flex Education - 4 courses)
November 2003 21 years old
(J.D.’s Stated Aim - Community College)
September, 2004 - 2005 22 years old
(University - Bachelor of Business Administration)
September, 2005 - 2006 23 years old
(University - Bachelor of Business Administration)
September, 2006 - 2007 24 years old
(University - Bachelor of Business Administration)
September, 2007 - 2008 25 years old
(University - Bachelor of Business Administration)
September, 2008 - 2009 26 years old
(University - Bachelor of Business Administration)
Expected age at graduation 27 years old
[190] At the time that J.D. commenced this renewed motivation to post secondary education, he was 20 years old. During the September, 2002 academic year, he took Wednesday evening classes to upgrade his high school diploma.
[191] In February, 2003 he was referred to a vocational counsellor who, by his own admission, did not put him in line for the employment opportunities for disabled adults program, because they wanted to see how much the father would be required to pay. He was 21 at the time. In September, 2003 to November, 2003, J.D. took the rest of that year to upgrade for his high school.
[192] In November, 2003, the learned trial judge operated on the understanding that community college was a cautiously realistic objective which, if accepted, would require accommodation to expand that two-year program to a four-year program.
[193] He also understood that the father would not be responsible after 24.
If he started September, 2004 and were able to finish the community college paralegal program, after two years, he would have been 24 on graduation. His costs would have been covered. It was reasonably foreseeable at the time that he could not complete it in the two years and may well not have completed it until after the limitation period in the Maintenance and Custody Act.
[194] Once the options available for J.D. were engaged, had this been a child of married parents, disabled and attending post secondary education, there could be a pooling of resources to support J.D.’s special tuition expenses. That may have been less crippling to the parents. It would allow for a flexible application of the Guidelines allowing for supplementary ongoing support from parents.
The prohibition against considering other assistance plays a detrimental role in assessing all realistic resources.
[195] Is the current program within the realm of a reasonable educational pursuit that imposes a duty on the parent?
[196] After careful consideration, extensive investigative work and the assistance of professionals, J.D. made a decision to apply for a paralegal course at community college. Without the knowledge of some of those who were assisting him and the Court, he changed the plan of action himself.
[197] The vocational counsellor and his mother supported his choices hoping for the best he could achieve. While the mother had significant input into his rehabilitation and has dedicated herself to his well being; she does not make decisions with respect to the course selection that J.D. follows. He decided to attend university at a pace that will allow him to graduate in June, 2009, when he is 27 years old.
[198] The vocational counsellor had some serious questions about the degree of difficulty a two-year course offered and its suitability for J.D., having regard to the fact that they would have to find an employer who would accommodate his special needs.
[199] The vocational counsellor, as supportive as he is, was not optimistic about job placement had he gone to community college.
[200] He recommended connecting J.D. to a program that utilized his obvious and new found success in studying with a job placement where he could apply what he learned, but acquire job skills and social skills to avail himself and a potential employer of an opportunity to work out the difficulties and to determine whether they could achieve a mutually beneficial union.
[201] Is the transition to completion of the degree a reasonable transition period? It is difficult to conclude that it was within the contemplation of the legislature that the length of this educational pursuit is a reasonable transition period from high school to graduation from college.
[202] The change in the young person’s behaviour and abilities are significant enough to allow him to pursue this education. He has impressed the persons who assessed him when he was first injured partly because of his dedication, his focus, his hard work, and the tireless support of his grandparents and his mother. He lives in a home and surroundings purchased by his maternal grandparents and his mother which enhances the possibilities of success.
[203] He has access to a car, access to two gyms, including membership at Saint Mary’s University. He takes courses two days a week, a course load which is 40 percent of a regular course load, but he continues his course load through the summer. This makes him unable to work substantially in the summer because he is occupied by courses. Work within the week, even though he attends school classes only two days a week, would, his mother predicts, sabotage his success. The evidence of the mother, supported by his caretakers, is, if he were to become gainfully employed to subsidize his educational process, he may, in fact, jeopardize the educational process.
[204] Looking forward from 2002 to 2003, when the learned trial judge was looking at the options, it was reasonable to anticipate he would be well within the program and moving towards completion when he approached June 2, 2006 and 24 years old. It cannot be said that it was reasonably contemplated that he would be continuing in a university course to 2009, and 27 years old, and still fall within the definition contemplated in the Maintenance and Custody Act.
[205] J.D.’s reasons for going to university, even though they exceed the usual delays and breaks college students take to help finance their education, are good reasons. They will enhance his education, possibly his skills; they may make him more marketable; they will enhance his options.
[206] It can also be said that this first degree, in and of itself, does not guarantee a marketable graduate. This degree is not necessarily job training. Often students require a further degree. An important aspect of this educational pursuit strongly recommended by Mr. Tapper is missing here. That is a connection to the workforce, with a subsidized placement, to facilitate the employer and J.D. in determining whether there can be a workable placement. This may take considerable time after his degree, if he cannot work during the completion of the degree. The limited work week also speaks to the question as to whether J.D. will be able to sustain a full time job placement.
[207] A course in community college, possibly with the added co-op element, may be more focussed on a job training rather than a broad-based educational experience. This current degree takes place in a rather unstructured program requiring J.D. to impose the structure he requires.
[208] There are many factors that influence the assessment of the plan, the reasonableness of the plan, the duration of the transition period, the special needs of this young person, the need for placement in a job site that can and will accommodate for his dis-inhibition, his need for structure, need for rest, et cetera. Included in this analysis must be a global consideration of the parental obligation, means and circumstances, parental obligations to support other children, the age and stage of development and needs of the parent.
[209] The goal of assisting children to become self-sufficient and marketable in today’s world may not necessarily include support to help them acquire the highest standard of achievement.
[210] At this stage, one consideration that is critical for the parents is the option to plan their own retirement in order to remain self sufficient in their senior years.
[211] The cost of keeping parents in litigation that has extended well beyond the age of majority, is a significant factor to consider when only one parent must pay the cost of counsel.
Repudiation of the parent-child relationship
[212] One of the factors listed in the developing case law is the issue of child-parent repudiation. The facts illustrate that repudiation was a live issue pre August 12, 2000. The mother’s counsel argues that this information was already considered in the previous hearing and is irrelevant here. Evidence of repudiation was led in both hearings. The findings of fact in the November 23rd decision did not related to the issue of repudiation.
[213] J.D.’s behavior and relationship with both parents is largely undisputed. While J.D. disputes the interpretation of events, his recollection is either so hampered by memory or lack of insight it would be impossible to distinguish what of his memory could be relied upon.
[214] The accident and his subsequent dependance made assessment of the effects of this behaviour less compelling in November, 2003. In this case, this issue is relevant viewing the totality of the evidence, the consequences of his late entry into his father’s life, the consequences flowing from his late adolescent pre-accident period, the effect on the family and now the lack of communication with the father as was envisioned in the order.
[215] J.D. professes now to want a relationship with his father. His father and family believed that continued contact with J.D. was a risk to the safety and health of the family.
[216] It is unrealistic to expect J.D. to take responsibility for behaviour he cannot remember. It is unreliable now to litigate that issue further. I accept the Applicant’s evidence and that of his partner as to the efforts they made and the perceived threat they felt. The mother does not deny the son’s pre-accident behaviour. The trial court and the Court of Appeal accepted this conduct as fact.
[217] J.D.’s assertion that he wants a relationship is of little weight, given his past conduct. If he does want the relationship, the consequences of and effect of his behaviour on his father’s family have to be addressed separate from financial considerations.
[218] Fluery L.J.S.C. , in Law v. Law, at p. 462, noted as follows:
“. . . where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered by the trial judge in determining whether it would be “fit and just” to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justify the child’s neglect of his or her filial duties.” (My emphasis)
[219] J.D.’s father and he have entered each other’s lives at likely the most difficult time in a young person’s life; adolescence. His father took him into his home. Both Mr. Hill and Ms. Lambert, diligently but unsuccessfully, attempted to help J.D. address his downward spiral.
[220] The facts speak for themselves. There was an attempt in arguing this case to paint the father the villain and the young person, J.D., the victim. This was simply a destructive analysis. It achieves nothing. It is not truth. Each of the participants appears emotionally bankrupt, as they attempt to get on with their lives.
[221] A dependent child is not entitled to support unconditionally and without limit. It is reasonable to expect respectful, civil and responsible behaviour on the part of the child as well as the parent, with clear obligations to keep the payor informed as to the dependent’s status as a dependent and in school, including an ongoing duty to report in advance, to provide ongoing reports with respect to their progress and educational plans, to provide marks to facilitate an objective analysis of the likelihood of success, to advise when they are not in school, to advise of their own contribution and job prospects, in order to continue to be entitled to expect ongoing support.
[222] These expectations facilitate responsible, economic dependency, according to the standards of civility expected of adults in financial relationships, personally and professionally. These expectations promote good citizenship as well as responsible self sufficiency.
[223] Romilly, J.D. of the British Columbia Supreme Court, in a Judgment dated March 17, 2000, Marsland v. Gibb, 2000 BCSC 471, dealt with an application by a daughter who was 19 and a half, who had unilaterally cut off ties with her father at 11, despite sincere attempts to be part of her life.
[224] Romilly, J.D. referred back to the often quoted decision of Farden v. Farden [1993], supra, indicating, once again, that:
“. . . mere attendance at an educational institution does not automatically make a mature child a “child of the marriage”. Lackadaisical attitudes toward schooling, unrealistic educational plans, exceedingly long post secondary attendances and “going to college because there is nothing better to do” will all militate against a finding of child of the marriage status.”
[225] Pre-accident, the pattern of enrollment was not promising, to say the least. Post accident, J.D. has exhibited strong motivation to complete his education plan. The completion of the degree is significantly protracted, given the facts unique to this case.
[226] The Court of Appeal noted that the burden is on the party asserting that a child over 19 years of age remains a child of the marriage.
[227] In Nolte v. Nolte, [2001] S.J. No. 362, 2001 SKQB 268, (2001), 208 Sask.R. 88, the child was 22 years of age with significant learning deficits. She received social assistance benefits of $195 and the mother provided food, shelter, clothing, items of personal hygiene, entertainment and a bus pass. The Court concluded at that time (perhaps much the same as J.D. at age 22), the child was, for the time being, a child of the marriage. She was unemployable and unable to withdraw from her mother’s charge and obtain the necessaries of life on $195 per month.
[228] The Court acknowledged that the circumstances may change. The father asked the Court how long he must continue to pay. The Court indicated that on the current circumstances he had an obligation to support his daughter. In light of her learning disability, her transition into adulthood and independence associated with adult status, was more difficult than the norm. He acknowledged that circumstances could change and, at some point, it might be in her best interests to reside in a group home where all of her needs are met and, at that point, it would be a matter to determine what, if any, obligation the parent had to pay.
[229] M-E. Wright referenced McIntyre J. in Nolte as follows:
“[21] I must also note that Ms. Nolte cannot, by virtue of deciding that Deanna should continue to reside with her, create an inability for Deanna to be able to withdraw from her charge. At present Deanna is unable to withdraw from her mother’s charge as Deanna is still going through a process of attempting to acquire the skills so as to be able to withdraw from her parent’s charge.”
[230] M-E. Wright noted that the financial resources available to the disabled adult before him may not be sufficient to cover all the expenses that the supporting parent considers desirable and appropriate, but they are sufficient to allow her to obtain the necessaries of life.
[231] There is no suggestion in this case that Ms. Davis will promote her son’s dependency. However, J.D.’s progress is far ahead of the circumstances set out in these cases. He is able to withdraw from the charge of his parent, although not necessarily without government assistance. He has a plan that makes staying at home in these protected surroundings a better option increasing the probability of his success. The fact that he resides with his mother and grandparents now is one of wisdom not necessity.
[232] This intervening tragic event gave J.D. a second opportunity to consider post secondary education. His behaviour and focus in pursuing rehabilitation and in pursuing education is significantly different.
[233] There is uncontested evidence throughout his history, previous to his accident in August, 2001, of difficult, aggressive behaviour.
[234] It is impossible at this stage to determine whether his pre-existing behavioural problems have contributed to a greater or lesser extent to his current behavioural difficulties. Therapeutic intervention was required. The incident described by Mr. Adams supports the concern that the consequences of the brain injury have impacted on his ability to engage in social situations.
[235] His success in school speaks to some significant changes in behaviour. The post injury behaviour does not appear on the limited facts before me to be associated with excessive use of drugs or alcohol. It is associated with the brain injury and the consequences of that, including distractibility, processing of information, dis-inhibited speech and social interaction. These will be factors impacting on employability.
[236] The injury and the consequences of that, his focus and his keen motivation, have convinced previous courts that there was sufficient change to re-engage his parents in an obligation to support him. The question is, as noted in the court of appeal: “For how long and according to what formula?”
[237] Since the Order of November, 2003, there has been little meaningful contact between J.D. and his father. J.D. testified he arrived at his father’s door and was refused entry. He wrote and received no response. The approach taken in the letter is not one of reconciliation. There has been no relationship since the fundamental breach that occurred before the accident.
[238] No information flowed from the order of November, 2003. The father received no evidence of his enrollment, of the change in plans, a plan significantly different than proposed at the hearing, no response to his enquiries.
[239] In weighing the evidence as to the true state of affairs, that conduct confirms the historical repudiation.
Conclusion:
[240] The December 8, 2004 order from the trial court was clear. The arrears were to be paid against ongoing educational costs and other special expenses upon verification of these.
[241] There is a history in this case of failure to provide factual information to the father, in a timely fashion; starting with the omission to advise he was the father until the child was approaching his teenage years; the omission to provide information in September, 2000, when J.D. had graduated in June and failed to return to school. There was no notification that he was enrolled in university until 2005 and that information was not verified. No receipts were tendered for payment until they were necessary for the preparation of this proceeding.
[242] They received no indication between 2003 and 2005 that enforcement procedures were underway and no request for payment from anyone.
[243] They received verification of actual attendance in a program significantly different from that proposed to the learned trial judge by affidavit in preparation for court.
[244] The provision of receipts 18 months after the expected implementation of the post secondary plan is neither fair nor justifiable if enforcement was contemplated.
[245] It is only when provided with the receipts that he can be said to be in default of s. 7 payments. Having regard to the failure to provide proof of enrollment, the payment of the $10,000 became due June 2, 2006.
[246] Many changes have occurred. J.D. now qualifies under the EAPD making him eligible for assistance with tuition costs up to $4,000, technological support, and tutoring.
[247] He continues to qualify for social assistance. He completes his own financial matters and remits rent to his mother. He has been tested to determine if his disability impairs his ability to drive and he passed his driver’s test in September, 2005. He drives himself without supervision to his courses, to the Sports Stadium, to other social activities. He goes out unattended with friends and was observed in a bar over the course of an evening drinking and socializing with friends. He has been out with friends to restaurants and he generally does all activities associated with a 24-old university student, although he takes classes only two days per week.
[248] In fact, despite all the help he received from the professionals, he decided he wanted to go to university and did that unilaterally.
[249] He does not have supplementary employment. Generally, other students would be expected to contribute. However, he contributes by way of the assistance he receives as a disabled adult. He needs additional rest and needs to maintain excellent nutrition to sustain his successful completion of school.
[250] I conclude at this time he is able to withdraw from the charge of his parents. Is it desirable? Likely not; but should he decide, he is able to do so with support from the community.
[251] When was he able to withdraw? There is not an absolute point in time when this occurred. J.D. decided to apply to university in March/April, 2004, after he finished his FLEC program. He applied for a loan. He currently decides when he will access the support services through the university. When he needed a report for this hearing, he attended the offices of Dr. Braha and Mr. Tapper, individuals with whom he had lost touch due to his improving state. He attended on his own. He obtained his driver’s licence in July, 2005.
[252] The mother and son did not advise the father in September as to the son’s activities and the father didn’t ask.
[253] In November, 2004, J.D. qualified for the continuation of Social Assistance because he was considered eligible for the Adult Employment Assistance Program. He was considered permanently disabled.
[254] He is able to withdraw from his parents’ charge when he enters university for the first time at 22 years of age. He is assisted through Provincial Assistance because of his disability to promote his self-sufficiency. At this point, he begins to receive the funding that recognizes the transition from childhood to adulthood. He is disabled and requires a different kind of community support.
[255] The transition has happened. He is now a disabled adult. The Court must consider the support of the community which J.D. receives. The support of the community makes possible the eventual self-sufficiency of this adult.
[256] I refer again and finally to Chief Justice McLachlin’s statement regarding the balance between community and parental responsibility for adult children.
McLachlin, C.J. spoke about the philosophy underlying the primacy of the state’s obligation versus the parents (paragraph 35):
“. . . In my opinion, the better view is that the amendments were not aimed at shifting the burden of caring for adult children from the state to parents, but rather with ensuring that in situations where one parent is charged with the care of an adult disabled child, the other parent is obliged to assist. This is supported by the wording of the definition of “child” in s. 87. If the intent was simply to shift the burden from the state to parents, it would have been clearer to state that parents with means are responsible for the care of adult disabled children. Instead, the definition includes the qualification that this is so only when the child has not left the “charge” of the parents. The effect generally is that where in fact a child cannot leave home and remains a charge or burden on his or her parents, both must contribute equally. On the other hand, where he is or she is able to leave the parents’ charge, the s. 88 obligation is inapplicable.”
[257] In September, 2004, with social assistance, he could withdraw from his parents’ charge. I then must consider whether he may still be entitled to support from his father due to his educational plans.
Conclusion
[258] The law places the burden of proving ongoing entitlement after the age of majority on the person asserting such claim.
[259] As of June 2, 2006, the father owes $10,000 payable to the mother for the support of their son. Mr. Hill should have paid monthly support at least until September, 2004. At that time, the Order contemplated the father would be in receipt of information regarding J.D.’s plans.
[260] The argument has been made that the father did not know of his son’s activities, due to his own poor relationship with the child. One cannot underscore the consequences resulting from the fact that this son and his father were not aware of each other’s existence. Historically, courts have been told that maintaining the bond between parents and child from inception promotes a greater likelihood of an emotional and financially sustainable relationship.
[261] It is reasonable to assume, as of September, 2004, the father would have been in receipt of information concerning the status of his progress and his ability to withdraw from his parents’ charge. His educational plans could have been reviewed at the same time.
[262] The parties and the Court could then assess what formula should be applied, having regard to the circumstances of the parties. Social assistance may not be considered under the Maintenance and Custody Act.
[263] The Court is ordinarily able to consider an amount other than the base amount in situations such as where a child is attending university. When addressing s. 7 expenses, the Guidelines specifically mandates consideration of the additional assistance available. Education costs are considered special expenses.
[264] The Guidelines are incorporated into the Maintenance and Custody Act. They are regulations and do not supercede the legislation.
[265] Allowing for an open-ended payment considering all the circumstances is simply moving the burden of supporting J.D., given his disability and his late entry into university from the state to the parent. That is not just.
[266] The age of the child, his disability, and his ability to withdraw from parental charge, the late entry into a program of post secondary education, the duration of that program, the nature of the relationship between parent and child, the lack of reporting and forthright communication not due to the conduct of the parent, all indicate that it is reasonable to terminate support as of September, 2004.
[267] This is somewhat of a unique situation. J.D. receives income due to his classification as permanently disabled. It is desirable to promote his self-sufficiency from a community perspective. To sabotage the public support that alleviates the financial burden on both parents and makes possible the completion of university in a home with extended family, would be counterproductive. To withdraw public assistance now might well lead to a future long term need for full assistance. It makes sense to support him.
[268] These parents have collectively and individually suffered so much. Taxing them further compromises their ability to look after their own affairs. The grandparents, the mother, the father, Ms. Lambert and J.D. have all suffered. He is, however, experiencing success in his recovery and his educational pursuits.
[269] J.D’s health professionals and his parents and grandparents are impressed at his motivation and commitment. He has accomplished much considering the extent of his injuries.
[270] Given the current state of the law, and the facts, I find that J.D. had completed the transition to a point when he could withdraw from his parents’ charge in September, 2004, when he opted to commence university, considering all the evidence about his then current state of health and activities. The program presented at this stage in his life, while commendable, is not of reasonable duration to require ongoing support, in light of all circumstances, including the father’s obligations.
Ability to pay arrears
[271] I do not accept as lasting the Applicant’s reduction in income to $30,230.88. He has the ability to earn more. I have some evidence to support some reduction in opportunity based on hiring more personnel. I have evidence from his doctor supporting his health and risk factors that relate more to his age and stress than to crippling disability. With some finality in defining his liability in these proceedings, hopefully, his health might improve.
[272] I do not have evidence of disability such that he can no longer work nor do I have sufficient evidence to convince me I ought to impute his ability to earn income at $90,000 as suggested by the mother’s counsel. Assessing annual income, given my decision, is no longer the focus. He has arrears to pay and the ability to finance them.
[273] The $10,000 owing will be paid in full by August 15, 2006 recognizing the intent of the former support order. The intent of the Court in the November, 2003 hearing was to pay this toward tuition and education expenses. Counsel should investigate a manner of payment that will ensure that this intent is realized and will not, if possible, put at risk his entitlement to his current grants and resources.
[274] The $10,000 may be applied to pay down past student loan or such other expenses associated with the care of J.D, not including day-to-day care as supplied by social assistance.
[275] The arrears in support, in accordance with the court order from December 1, 2003 to August, 2004, will be ($774) for December, 2003 and, based on an annual salary of $91,910, for eight months in 2004, ($718) (ie., $5,744).
[276] Ordinarily the arrears of $6,518 would be payable to reimburse social assistance as it related to day-to-day expenses for rent and food with some allocation for special expenses, health, diet and transportation. There were, however, unmet needs which ultimately were paid for by the mother that should be reimbursed to her.
[277] The father shall pay one half of those arrears $3,260 to the mother by December 1, 2006 to reimburse her for expenses she absorbed including the balance of the computer costs, her unmet gas needs, particularly during the first year of university when she had to drive J.D. to school, as he did not have a licence; her insurance costs and premiums on the mother’s health care plan for the eight-month period. She also gave evidence of renovations required to accommodate J.D. in the home.
[278] I understand there is a requirement that the mother reimbursed social assistance for the balance of these arrears. So as not to jeopardize Mr. Hill’s ability to pay the $10,000, a moratorium will be placed against enforcement of the balance of the arrears (that is the amount of $3,258), pending further court order on application of the government authority entitled to receive the remaining $3,258.
[279] Throughout the Decision, reference to the adult child’s name has been changed to read J.D., including all references in the quotes cited in the case law.
[280] Counsel for the Applicant shall prepare the order.
Legere Sers, J.
Halifax, NS
June 30, 2006